David A. Plymyer: Political, Social & Random Commentary

Month: October 2015

The expectations for Kevin Davis, recently confirmed as Baltimore’s permanent police commissioner, must be tempered by the recognition that he faces two separate problems, one over which he has more control than the other. One problem is the rate of murder and other violent crime in the city. The other problem is what Davis’s predecessor referred to as “the cycle of scandal, corruption and malfeasance” in the Baltimore Police Department (BPD). The problems do not have the same causes, nor can they be fixed in the same manner. Unless Davis succeeds in changing the culture of his department, however, the BPD will be unable to do its part to help turn back the tide of violence sweeping the city.

Nothing Davis does will produce immediate or dramatic reductions in the rate of murder and other violent crime. Baltimore is plagued by chronic unemployment, grinding poverty, and an underperforming education system. It is awash in drugs, guns, and gangs. Too many boys are raised without fathers and, before they are teenagers, are lost to life on the streets where recourse to violence becomes second nature. The social ills that are to blame for the spike in violent crime are not the fault of nor can they be fixed by the Baltimore Police Department (BPD). It is pointless to hold Davis responsible for something over which he has little control.

On the other hand Davis can, if given the proper tools, shape the conduct of his police officers, require officers to treat the citizens that they are sworn to serve with dignity and respect, and restore the trust and confidence of the citizens in the department. Improvements to the relationships between officers of the BPD and members of the public ultimately will make the department more effective at solving crime. If the department becomes more effective at solving crime it can begin to chip away at the rate of violent crime.

The challenges of policing Baltimore should not be understated. It is because of those challenges, however, that the need for effective discipline is greater. Any army can maintain its discipline on the parade ground, with each soldier staying in step within evenly spaced ranks and files. It is harder but more important for an army to maintain its discipline when under fire. Although the military analogy may raise some hackles it is important for those of us who are not police officers to acknowledge that police work, particularly in a city like Baltimore, is on occasion dangerous and requires courage. It also requires self-restraint. No matter how fast the adrenaline is pumping, the impulse to use excessive force (or spit on a hand-cuffed suspect) must be controlled. That requires discipline.

When discipline breaks down the consequences must be, in Davis’s own words, “swift and certain.” Disciplinary action in the BPD has been anything but swift and certain. Davis needs to explain in detail what must be done to repair the process and, if necessary, and he needs to lobby legislators to make changes to the law governing the process.

There are theoretical concerns and then there are practical considerations. The announcement by Councilman Nick Mosby that he will run for mayor gives Baltimore voters an opportunity to weigh a theoretical concern against a practical consideration bearing upon the well-being of the criminal justice system in the city.

On the theoretical side the candidacy of Councilman Nick Mosby, husband of State’s Attorney Marilyn Mosby, raises a concern arising from the checks and balances on governmental power put in place by the Maryland Constitution. The independence of the prosecutor’s office from the police department is intended to promote the objectivity of prosecutorial decisions and is universally considered to be an important safeguard against abuse within the criminal justice system. There is a legitimate question as to whether that independence is compromised and the safeguard weakened if the mayor, who controls the police department, is married to the state’s attorney.

On the practical side is the fact that Nick Mosby is the only announced candidate who has stated that reform of the Baltimore Police Department (BPD) will be one of his primary objectives and who is unlikely to be intimidated by the Fraternal Order of Police (FOP). There is nothing more important to the criminal justice system in Baltimore than getting rid of bad cops and changing the culture of the BPD. That is not a theory; that is reality.

Nick Mosby will not bother trying to curry favor with Lodge No. 3 of the Fraternal Order of Police (FOP); that ship has already sailed. Lodge No. 3 represents the rank-and-file police officers, sergeants, and lieutenants in the Baltimore Police Department (BPD). Mosby’s wife, State’s Attorney Marilyn Mosby, has been vilified by members of the union. Union president Lt. Gene Ryan went on Fox News in May to blast her for not supporting his members, stating that she “rushed to judgment” in charging six officers for their alleged involvement in the death of Freddie Gray and was acting like the “judge, jury, and executioner” in their cases. Ryan even blamed her in part for the spike in violent crime that followed the April riots, stating that her lack of support for police officers made them hesitant to carry out their duties because they were fearful of being charged by her with crimes.

Mosby’s candidacy puts in question the future of Police Commissioner Kevin Davis, who was strongly endorsed by the FOP. Ryan testified in glowing support of Davis at his confirmation hearing before the city council’s Executive Appointments Committee, describing Davis as a “cop’s cop” who learned by listening to his officers. It seems likely that the strong support of Davis by the FOP means that Davis will not make the same “mistake” as his predecessor, Anthony Batts, did by admitting that the BPD was stuck in a “cycle of scandal, corruption and malfeasance” and in need of “wholesale change” and by predicting that more officers will face arrest as reforms are implemented. In fact, Davis has said nothing about the need to reform the dysfunctional disciplinary process of the BPD other than to state generally that discipline needs to be “swift and certain.”

Nick Mosby was one of only two members of the City Council to vote against confirmation of Davis as the permanent police commissioner. It seems likely that Mosby would replace Davis with a commissioner more strongly committed to reform. One of Mosby’s opponents is State Senator Catherine Pugh. Pugh has been a staunch supporter of organized labor and the FOP during her years in the senate. Her candidacy is likely to be much more favorably received by the FOP.

This election will determine how strongly reform of the BPD will be pursued. There are some clear differences among the candidates on that issue.

Two recent stories in The Baltimore Sun drew me back to the issue of the dubious performance of the Office of the State’s Attorney for Baltimore City. The first story included tangible evidence of the damage done by State’s Attorney Marilyn Mosby when she fired a large number of experienced prosecutors upon taking office. The second story shows how much of a high-wire act it was for Ms. Mosby to decide to file charges against the six police officers allegedly involved in the death of Freddie Gray: She made her decision without reviewing the results of an exhaustive investigation carried out by a thirty-member task force put together by the Baltimore Police Department (BPD).

A week after The Baltimore Sun published my op-ed article on the problems plaguing both the BPD and the State’s Attorney’s Office [“Gaffes put court cases in jeopardy,” The Sun, October 2, 2015] the newspaper reported that gun charges had been dropped by the State’s Attorney in January of this year against Dontae Small, who allegedly was driving a stolen vehicle when it crashed at Ft. Meade on October 7th. The vehicle had been stolen at gunpoint from a man in Fells Point several days earlier, and Small now has been charged in the robbery. [The Sun, October 9, 2015.]

Small has a lengthy criminal record, and The Sun reported that he has been in and out of prison since 1993. The drug and firearms case against him was dropped in January because the Office of the State’s Attorney was unprepared to go to trial against him after a request for postponement was denied by Judge Barry Williams. The case had been scheduled to be prosecuted by former Assistant State’s Attorney Grant McDaniel who had been fired two weeks before the scheduled trial date by incoming State’s Attorney Marilyn Mosby.

From the statements attributed to him by The Sun Judge Williams was taken aback that a veteran prosecutor with about 200 active cases was abruptly terminated without regard to what would happen to his caseload, and apparently without regard to the speedy trial rights of defendants. Judge Williams properly denied the postponement request (as a previous judge had done) and the State’s Attorney was forced to drop the charges against Small. Although no one knows what the outcome would have been had the case against Small gone to trial in January it is fair to say that it may not have been necessary to return Small to the streets if Ms. Mosby had not fired McDaniel without a plan how to manage his caseload.

In August former Assistant State’s Attorney Roya Hanna warned that reckless personnel actions taken by Ms. Mosby immediately upon assuming office had damaged the ability of the State’s Attorney’s Office to prosecute crime. [“Marilyn Mosby has a role in City’s violence increase,” The Sun, August 12, 2015.] In her commentary Ms. Hanna accused Ms. Mosby of jeopardizing prosecutions by firing six experienced prosecutors immediately upon taking office and leaving felony prosecutor positions vacant while she added staff to her media and “community outreach” teams. According to Ms. Hanna the brain drain continued with the departure of ten more trial attorneys.

Allegations such as those made by Ms. Hanna often are dismissed as those of disgruntled former employees. Disgruntled or not, Ms. Hanna made a point worth making: Prosecution of serious crime requires experience gained under competent supervision, and the loss of a large number of competent, experienced prosecutors within a short period of time is a cause for concern. Moreover, we now have evidence that the turmoil described by Ms. Hanna had a very real impact on at least one case, forcing a prosecutor who was unprepared to go to trial to drop charges against a defendant with a lengthy prison record who went right back to the streets and allegedly committed another crime.

This week The Baltimore Sun published a detailed and absorbing account of the nine days in April that its reporters spent “imbedded” with the members of the BPD investigating the death of Freddie Gray. [“Grueling task, little return,” The Sun, October 11, 2015.] The most striking aspect of the story was the fact that the extensive investigation conducted by the police department had little or nothing to do with the charges brought against the six police officers; the charges resulted from the “parallel” investigation done by the State’s Attorney with the assistance of the Baltimore City Sheriff’s Office. According to the article, although prosecutors were briefed every few days on the status of the investigation being done by the police department they asked few questions about the investigation, which police commanders found highly unusual and troubling. In hindsight, the reason for the prosecutors’ lack of interest in the investigation was that the department’s investigation had no bearing on what the State’s Attorney intended to do.

To appreciate how far out on a limb Ms. Mosby has gone in the Freddie Gray cases you have to understand that there is no comparison between the resources and investigatory skills found within the BPD and those in the State’s Attorney’s and Sheriff’s Offices. If the BPD is the varsity, then the State’s Attorney and the Sheriff are not even the junior varsity. They are the middle school team.

That is not to say that the cases cannot be successfully prosecuted as they stand, depending on the evidence. My guess is that the cases themselves will be surprisingly simple, in the sense that they will rise or fall on the testimony from a handful of witnesses, the officers themselves, and one or two experts on police procedures. If any of the officers are acquitted on all counts, however, Ms. Mosby has no defense against the criticism that she acted without utilizing the best investigatory tools available to her and that she charged the officers without considering all of the available facts.

Standing alone, Ms. Mosby’s decision to charge Officer Caesar Goodson, Jr. with second-degree murder raises its own questions about her judgment, as discussed in a previous post. If Officer Goodson is not found guilty of that charge Ms. Mosby will have to live with the fact that she charged a man with murder without bothering to read the police investigation on the incident. What justification can there be for that?

One matter that the extensive investigation done by the police department does bear upon is the obligation of the prosecutors to turn over to the defense attorneys for the charged officers any investigatory material that may be relevant to the defense of the cases. The “discovery” obligation includes information gathered not only by the State’s Attorney and Sheriff, but also by the BPD. The cooperation between the BPD and the State’s Attorney Office in satisfying this requirement has been problematic for many years, and the lack of attention paid by the State’s Attorney to the BPD investigation into the death of Freddie Gray makes a difficult situation even harder. It is clear from the motions filed to date in the criminal cases that prosecutors are struggling to identify the investigatory material that must be turned over to the defense attorneys. The State’s Attorney can ill afford a mistrial or overturned conviction in one of the Freddie Gray cases caused by another discovery violation of the type described in my op-ed article earlier this month.

If the prosecutions of the six officers charged in the death of Freddie Gray are successful the series of rash actions taken by Ms. Mosby since her term began in January will be forgotten. If the prosecutions are not a success, however, there will be no net to catch Ms. Mosby as she tries to explain why she gutted the office of experienced prosecutors and why she chose not even to consider the extensive investigation conducted by the most experienced homicide detectives in the BPD before deciding to file charges against the six police officers allegedly involved in the death of Freddie Gray, including charging one of those police officers with murder.

As every viewer of “Law and Order” knows, the people are represented in the criminal justice system “by two separate but equally important groups” — the police and the prosecutors. On Sept. 2 the Maryland Court of Special Appeals overturned the conviction of Robert Harris for the murder of Teresa McLeod, his fiancée. The case illustrates how deeply troubled both parts of the criminal justice system are in Baltimore.

In 2012, a jury found Mr. Harris guilty in the murder-for-hire death of McLeod, who was shot six times with a Glock handgun in 1996. The conviction was reversed because the trial judge, at the urging of an assistant state’s attorney, refused to allow defense counsel to cross-examine former Baltimore City Police Det. Darryl Massey “about his prior misconduct in submitting falsified time sheets, as reported by the Baltimore City Police Department Internal Investigation Division (IID).” The appeals court held that Mr. Harris had the constitutional right to use the misconduct in order to try to impeach Detective Massey’s credibility before the jury.

This was the second time Mr. Harris had his murder conviction overturned. He was originally found guilty in McLeod’s death by a jury in April 1997, but the conviction was also reversed, that time because prosecutors failed to disclose sentencing leniency that was given to key prosecution witnesses, which could have been used by defense counsel as impeachment evidence.

Such procedural gaffes by the state’s attorney’s office continue today. In August, the office abruptly dropped charges against one of the top targets in a major dogfighting ring after a judge ruled that there had been “significant discovery violations” by the prosecution. And last month, a mistrial was declared in the case brought against Gregg Thomas, who was charged with shooting a Baltimore police sergeant, because prosecutors had failed to turn over to defense counsel ballistic evidence as required.

The Baltimore police department also has its share of problems, starkly evident in the way it handled the internal investigation regarding Detective Massey’s overtime reporting. It was an issue in the latest Harris case reversal and in the reversal of an unrelated 2010 murder case, in which a trial judge was found to have improperly granted a police department motion denying access to the internal investigatory file.

Detective Massey, whose base salary of $71,361 had doubled to $141,077 with overtime pay, had been placed under surveillance during an investigation of alleged overtime abuse within the Eastern District Detective Unit in 2006 and 2007. The surveillance disclosed that on five separate days Detective Massey submitted overtime slips for periods of time during which he was not working, and the IID “sustained” the allegations against him. Two years later, The Sun reported that the charges against Mr. Massey and other officers accused of overtime abuse were “dropped” by the BPD because of unspecified “administrative issues” (“Cases against police halted,” June 26, 2009), and Detective Massey’s file was administratively closed in 2009.

This caused a problem in the most recent Harris case. It seems that “sustained” internal charges against officers automatically convert to “unsustained” status upon “administrative closure” of a disciplinary case, per a 2009 Memorandum of Understanding between the police department and the officers’ union. The prosecution argued in the 2012 trial that Mr. Harris’ defense attorney had no right to cross-examine Detective Massey about the overtime records because only sustained misconduct could be used as impeachment evidence.

The trial court accepted the prosecution’s argument, but the appeals court later rejected it. The “right to cross-examine Det. Massey about his falsification of time sheets did not evaporate simply because the previously ‘sustained’ administrative action subsequently became ‘unsustained’ by virtue of the ‘administrative closure’ and/or a memorandum of understanding between the Baltimore Police Department and the Fraternal Order of Police,” the appellate judge wrote in reversing Harris’ 2012 conviction.

It’s still unclear today what “administrative closure” means to the Baltimore Police Department or why it signed the MOU with the FOP. What is clear is that issues within the police department and Baltimore City state’s attorney’s office that could adversely affect the prosecution of crimes in the city are largely hidden from public view until there is a mistrial or a reversed conviction, which happens all too frequently.

[Published as an op-ed by The Baltimore Sun on October 1, 2015. I did not post the piece until May 31, 2016; the date of posting listed above was backdated to place the piece on the blog in the order it was written.]